Consumers' Checkbook, Center for the Study of Services v. United States Department of Health & Human Services

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 8, 2008 Decided January 30, 2009

No. 07-5343

CONSUMERS’ CHECKBOOK,
CENTER FOR THE STUDY OF SERVICES,
APPELLEE

v.

UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES ET AL.,
APPELLANTS

AMERICAN MEDICAL ASSOCIATION,
INTERVENOR

Appeal from the United States District Court
for the District of Columbia
(No. 06cv02201)

Steve Frank, Attorney, United States Department of Justice,
argued the cause for the appellants. Gregory G. Katsas,
Assistant Attorney General, Jeffrey A. Taylor, United States
Attorney, and Leonard Schaitman, Attorney, were on brief. R.
Craig Lawrence, Assistant United States Attorney, entered an
appearance.
Jack R. Bierig argued the cause for intervenor American
Medical Association in support of the appellants.
 2

Robert M. Portman was on brief for amici curiae American
Medical Association et al. in support of the appellants.
Nicole R. Rabner argued the cause for the appellee. Patrick
J. Carome and Paul R. Q. Wolfson were on brief.
Stacy J. Canan was on brief for amici curiae American
Association of Retired Persons et al. in support of the appellee.
Mark R. Savage was on brief for amicus curiae Consumers
Union of United States, Inc. in support of the appellee.
Before: HENDERSON, RANDOLPH and ROGERS, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Separate opinion filed by Circuit Judge ROGERS, concurring
in part and dissenting in part.
KAREN LECRAFT HENDERSON, Circuit Judge: Consumers’
Checkbook, Center for the Study of Services (CSS) filed this
action under the Freedom of Information Act (FOIA), 5 U.S.C.
§§ 552 et seq., seeking from the United States Department of
Health and Human Services (HHS) records for all Medicare
claims submitted to HHS by physicians in several localities
during 2004. The district court granted summary judgment in
CSS’s favor, concluding that the records are not exempt from
disclosure under FOIA Exemption 6, id. § 552(b)(6). See
Consumers’ Checkbook, Ctr. for Study of Servs. v. U.S. Dep’t of
Health & Human Servs., 502 F. Supp. 2d 79, 83-86 (D.D.C.
2007) (Memorandum Opinion). For the reasons set forth below,
we reverse the judgment of the district court.
I.
On March 27, 2006, CSS submitted a FOIA request to the
Centers for Medicare and Medicaid Services (CMS), a division
within HHS, seeking a subset of data elements from all
Medicare claims submitted by certain physicians in 2004. The
 3

data elements include the diagnosis, the type and place of
service and the Unique Physician Identifying Number (UPIN)
of the physician who performed the services. CSS limited its
request to physicians in the District of Columbia, Illinois,
Maryland, Washington and Virginia. It did not request data that
identifies Medicare beneficiaries. At the time of the request,
every physician was assigned a UPIN when he enrolled in
Medicare.1 A physician’s name, office zip code, medical or
surgical specialty and UPIN are publicly available on the
internet. The fees a physician receives from Medicare for
performing a specific service or procedure are also publicly
available on the internet. Combined with the publicly available
fee schedule, the data requested by CSS can be used to calculate
the total payments Medicare made to any individually identified
physician for claims submitted in 2004.
CMS denied the FOIA request and CSS appealed to the
CMS Deputy Administrator. On December 26, 2006, CSS filed
a complaint in district court under FOIA seeking injunctive
relief. Both parties moved for summary judgment. HHS argued
that the requested records are exempt from disclosure under
FOIA Exemption 6. Alternatively, it argued that a twenty-nine-

1
Health service providers and suppliers must enroll in the
Medicare program “[t]o receive payment for covered Medicare items
or services from either Medicare . . . or a Medicare beneficiary.” 42
C.F.R. § 424.505. CMS discontinued the UPIN as of June 2007 and
replaced it with the National Provider Identifier (NPI). See CMS,
UPIN Directory, http://www.cms.hhs.gov/NonIdentifiable
DataFiles/08_UniquePhysicianIdentificationDirectory.asp (last visited
Jan. 23, 2009). The NPI is a unique identifier used to identify each
health care provider or supplier. See CMS, The Who, What, When,
Why & How of NPI: Information for Health Care Providers (2006),
http://www.cms.hhs.gov/MedicareProviderSupEnroll/downloads/
EnrollmentSheet_WWWWH.pdf. The NPI registry may be searched
online at https://nppes.cms.hhs.gov/NPPES/NPIRegistryHome.do.
 4

year-old permanent injunction issued by the United States
District Court for the Middle District of Florida bars disclosure
of the requested data from physicians who are American
Medical Association (AMA) members. See Fla. Med. Ass’n v.
Dep’t of Health, Educ. & Welfare, 479 F. Supp. 1291 (M.D. Fla.
1979). In an opinion and order filed August 22, 2007, the
district court granted summary judgment in CSS’s favor and this
appeal followed.2 Memorandum Opinion at 81, 89.
II.
HHS appeals the district court’s grant of summary judgment
as to the requested Medicare records the court held were not
exempt from disclosure under FOIA Exemption 6.3 We review
the district court’s grant of summary judgment de novo.
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145 (D.C. Cir.
2006). FOIA provides that an agency must disclose all records
upon request by “any person,” 5 U.S.C. § 552(a)(3), unless a
statutory exemption applies. Id. § 552(b). FOIA Exemption 6
provides that FOIA “does not apply to matters that are . . .
personnel and medical files and similar files the disclosure of

2
The district court also held that CSS is entitled to the requested
information without charge under 5 U.S.C. § 552(a)(4)(A)(iii).
Memorandum Opinion at 86-89. HHS does not appeal the fee waiver
determination.
3
HHS also appeals the district court’s determination that the
Middle District of Florida’s permanent injunction does not bar
disclosure of the requested data from physicians who are AMA
members. See Fla. Med. Ass’n, 479 F. Supp. 1291. It argues that
under GTE Sylvania, Inc. v. Consumers Union of United States, Inc.,
445 U.S. 375 (1980), a requesting party may not obtain documents
under FOIA “when the agency with possession of the documents has
been enjoined from disclosing them by a Federal District Court.” 445
U.S. at 384. As we resolve this appeal on other grounds, we express
no opinion as to the merits of the argument under GTE Sylvania.
 5

which would constitute a clearly unwarranted invasion of
personal privacy.” Id. § 552(b)(6). It is undisputed that the
requested Medicare records are personnel, medical, or “similar
files.” See Memorandum Opinion at 83. Accordingly, we must
determine whether “disclosure would compromise a substantial,
as opposed to a de minimis, privacy interest.” Nat’l Ass’n of
Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir.
1989). If a substantial privacy interest is at stake, then we must
balance the privacy interest in non-disclosure against the public
interest. Id. (citing Ripskis v. HUD, 746 F.2d 1, 3 (D.C. Cir.
1984)). Disclosure is not required if it “would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). The agency bears the burden to persuade the court
that the exemption applies. Ripskis, 746 F.2d at 3.
A.
We have consistently held that an individual has a
substantial privacy interest under FOIA in his financial
information, including income. In Multi AG Media v.
Department of Agriculture, 515 F.3d 1224 (D.C. Cir. 2008), we
found that the disclosure of information on “irrigation practices,
farm acreage, and the number and width of rows of tobacco and
cotton” implicated substantial privacy interests because it would
“in some cases allow for an inference to be drawn about the
financial situation of an individual farmer” receiving federal
subsidies. 515 F.3d at 1226, 1230. In Painting and Drywall
Work Preservation Fund, Inc. v. HUD, 936 F.2d 1300 (D.C. Cir.
1991), we found that contractors on federal construction projects
had a substantial privacy interest in their names, addresses,
hourly pay, hours worked and wages. 936 F.2d at 1301-02; see
also Sheet Metal Workers Int’l Ass’n, Local No. 9 v. U.S. Air
Force, 63 F.3d 994, 995, 998 (10th Cir. 1995) (government
contractors on federal construction projects have substantial
privacy interest in payroll records); Painting Indus. of Haw.
Market Recovery Fund v. U.S. Dep’t of Air Force, 26 F.3d 1479,
 6

1484 (9th Cir. 1994) (same); Hopkins v. HUD, 929 F.2d 81, 86-
87 (2d Cir. 1991) (same). The Congress has also recognized the
privacy interest an individual taxpayer has in his tax return
information, including the “nature, source, or amount of his
income,” 26 U.S.C. § 6103(b)(2)(A), and has prohibited the
disclosure of tax return information with limited exceptions. Id.
§ 6103(a).
The information requested by CSS would reveal the total
Medicare payments received by a physician for covered
services. CSS notes that the information would not reveal a
physician’s gross revenue because it would not include income
from non-Medicare sources. Nor would it reveal a physician’s
net income because it would not include business operating
expenses. But the requested information need not reveal
completely an individual’s personal finances to implicate
substantial privacy concerns. See Multi AG Media, 515 F.3d at
1228-29 (substantial privacy interests implicated because
requested information “would necessarily reveal at least a
portion of the owner’s personal finances”) (quoting Nat’l Parks
& Conservation Ass’n v. Kleppe, 547 F.2d 673, 685 (D.C. Cir.
1976)). CSS also argues that a physician does not have a
privacy interest in Medicare payments because the payments
relate to business activities and not personal finances. We have,
however, recognized substantial privacy interests in business-
related financial information for individually owned or closely
held businesses because the “financial makeup of the businesses
mirrors the financial situation of the individual family
members.” Multi AG Media, 515 F.3d at 1229 (internal
quotations omitted); cf. Wash. Post Co. v. U.S. Dep’t of Justice,
863 F.2d 96, 100 (D.C. Cir. 1988) (information related to
employees’ business decisions in developing and marketing
medication does not implicate privacy interests under FOIA
Exemption 7); Wash. Post Co. v. U.S. Dep’t of Health & Human
Servs., 690 F.2d 252, 261-62 (D.C. Cir. 1982) (no substantial
privacy interest in list of organizations in which scientific
 7

consultants have financial holdings related to their consulting
duties, but not dollar amounts of holdings). Accordingly, we
conclude that physicians have a substantial privacy interest in
the total payments they receive from Medicare for covered
services.
B.
We next examine the public interest in disclosure. The only
relevant public interest in disclosure “is the extent to which
disclosure would serve the ‘core purpose of the FOIA,’ which is
‘contribut[ing] significantly to public understanding of the
operations or activities of the government.’” U.S. Dep’t of Def.
v. FLRA, 510 U.S. 487, 495 (1994) (quoting U.S. Dep’t of
Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749,
775 (1989)). The requested information must “shed[] light on
an agency’s performance of its statutory duties.” Reporters
Comm. for Freedom of Press, 489 U.S. at 773. “[I]nformation
about private citizens . . . that reveals little or nothing about an
agency’s own conduct” does not serve a relevant public interest
under FOIA. Id. The requesting party’s intended use for the
information is irrelevant to our analysis. See id. at 771 (“[T]he
identity of the requesting party has no bearing on the merits of
his or her FOIA request.”).
CSS claims that disclosure of the requested records will
serve the public interest by revealing information about “(i)
HHS’s performance in maintaining and enhancing the quality
and efficiency of services provided under the Medicare program,
(ii) the agency’s ability to root out Medicare fraud and waste;
and (iii) the agency’s compliance with various transparency
initiatives.” Appellee’s Br. 21. We examine each contention in
turn.
1.
The Congress has charged HHS with “promoting the
effective, efficient, and economical delivery of health care
 8

services, and of promoting the quality of services of the type for
which payment may be made” by contracting with peer review
organizations.4 42 U.S.C. § 1395y(g). In 2003, the Congress
directed HHS to establish a demonstration program to “examine
health delivery factors that encourage the delivery of improved
quality in patient care.” Id. § 1395cc-3(b). While CMS has
certain responsibilities to promote quality healthcare for
Medicare beneficiaries, it is not authorized to “exercise any
supervision or control over the practice of medicine or the
manner in which medical services are provided, or over the
selection, tenure, or compensation of any officer or employee of
any institution, agency, or person providing health services.” Id.
§ 1395.
CMS is also responsible for enrolling health care providers
and suppliers, including physicians, in the Medicare program.
A “provider” or “supplier” must be enrolled in the Medicare
program to receive payment for covered services. 42 C.F.R.
§§ 424.505, 424.510. The term “supplier” refers to “a physician
or other practitioner, or an entity other than a provider, that
furnishes health care services under Medicare.” Id. § 400.202.
The term “physician” includes “a doctor of medicine or
osteopathy legally authorized to practice medicine and surgery
by the State in which he performs such function or action.” 42
U.S.C. § 1395x(r). CMS may exclude from participation in any
Federal health care program, including Medicare, “[a]ny
individual or entity . . . whose license to provide health care has
been revoked or suspended by any State licensing authority . . .
for reasons bearing on the individual’s or entity’s professional
competence [or] professional performance.” Id. § 1320a-7(b)(4).

4
Quality peer review organizations review whether services are
reasonable and medically necessary, the quality of services and
whether certain services can be performed more effectively and
economically on an outpatient basis. 42 U.S.C. § 1320c-3(a)(1).
 9

CMS may also exclude an individual or entity that “has
furnished or caused to be furnished items or services to
patients . . . substantially in excess of the needs of such patients
or of a quality which fails to meet professionally recognized
standards of health care.” Id. § 1320a-7(b)(6)(B).
CSS makes three arguments regarding how the requested
data will shed light on HHS’s performance of its mission to
promote quality healthcare for Medicare beneficiaries. First, it
claims that the requested data will indicate the quality of care
Medicare patients are receiving. The claim rests on the
assumption that the frequency with which a physician performs
a medical procedure indicates the quality of the procedure. The
medical community has not reached a consensus on whether the
number of procedures performed by a physician correlates to the
quality of those procedures. Compare John D. Birkmeyer et al.,
Surgeon Volume and Operative Mortality in the United States,
349 New Eng. J. Med. 2117, 2117 (2003) (“Patients can often
improve their chances of survival substantially, even at high-
volume hospitals, by selecting surgeons who perform the
operations frequently.”), with Ethan A. Halm et al., Is Volume
Related to Outcome in Health Care? A Systematic Review and
Methodologic Critique of the Literature, 137 Annals Internal
Med. 511, 517 (2002) (“Twenty years of research have
established that, for some procedures and conditions, higher
volume among hospitals and physicians is associated with better
outcomes. However, the magnitude of the relationship varies
greatly among individual procedures and conditions. . . . Even
when a significant association exists, volume does not predict
outcome well for individual hospitals or physicians.”). Even
assuming a strong correlation between volume and quality, the
data CSS requests will not indicate total volume because it does
not include procedures performed by physicians for non-
Medicare patients.
Second, CSS claims that the requested data will enable the
 10

public to determine if Medicare is paying physicians with
insufficient certifications, disciplinary histories or poor
evaluations for a large quantity, or any number, of procedures.
The public can determine through publicly available information
whether physicians with insufficient certifications, disciplinary
histories or poor evaluations are enrolled in the Medicare
program. See U.S. Dep’t of Def. Dep’t of Military Affairs v.
FLRA, 964 F.2d 26, 29-30 (D.C. Cir. 1992) (recognizing that
“alternative sources of information available that could serve the
public interest in disclosure” diminish public interest value of
disclosure). One can infer without the requested data that an
enrolled physician is performing at least some procedures. See
42 C.F.R. § 424.540(a)(1) (CMS may deactivate physician’s
Medicare billing privileges if no claims submitted for 12
consecutive months). Currently available information does not
enable an individual to know whether a physician with an
insufficient certification is performing a large number of (or
any) specific procedure, but this added knowledge does not shed
any additional light on whether CMS is following its enrollment
procedures contained in 42 C.F.R. § 424.510. Cf. Multi AG
Media, 515 F.3d at 1231 (requested data indicated entity’s
eligibility vel non to participate in federal benefits program).
Third, CSS claims the “requested records can also be
analyzed in conjunction with other treatment records to
determine whether individual Medicare doctors are providing all
services required to reach standards of recommended care.”
Appellee’s Br. 24. CSS does not explain how the requested data
can be used to perform this analysis. Rather, it cites articles
noting that the quality of care delivered to Medicare
beneficiaries has room for improvement and greater access to
information is necessary for improvement. See Stephen F.
Jencks et al., Change in the Quality of Care Delivered to
Medicare Beneficiaries, 1998-1999 to 2000-2001, 289 JAMA
305, 305 (2003); Elizabeth A. McGlynn et al., The Quality of
Health Care Delivered to Adults in the United States, 348 New
 11

Eng. J. Med. 2635, 2643-44 (2003).
Even if the requested data could be used to measure the
quality of care provided by Medicare-enrolled physicians, it
would not shed light on the “agency’s performance of its
statutory duties.” Reporters Comm. for Freedom of Press, 489
U.S. at 773. CSS argues that the requested data will indicate the
quality of care being provided by Medicare-enrolled physicians
and thereby permit the public to assess how well CMS is
fulfilling its statutory duty to promote quality. But we fail to see
how the requested data will allow the public to evaluate the
performance of any specific quality-promoting programs CMS
has a statutory duty to undertake. The data will not reveal how
well the peer review organizations with which HHS contracts to
promote quality healthcare are performing their duties, see 42
U.S.C. § 1395y(g), or how well the demonstration program
“examine[d] health delivery factors that encourage the delivery
of improved quality in patient care.” Id. § 1395cc-3(b). The
data will not assist the public in determining whether Medicare
is enrolling physicians who do not meet the enrollment
requirements. Nor will it enable the public to determine whether
CMS is properly excluding physicians who “fail[] to meet
professionally recognized standards of health care,” id. § 1320a-
7(b)(6)(B), because nothing indicates that a physician who
performs a procedure less often fails to meet recognized
standards of health care.
2.
CSS next contends that disclosure of the requested data will
serve the public interest by revealing fraudulent Medicare claims
made by physicians. For example, CSS notes that physicians
who submit claims for procedures outside their specialties or
who submit unusually high numbers of claims in general or for
specific procedures may be committing fraud. But CSS has not
provided any evidence of alleged fraud the requested data would
reveal. In United States Department of State v. Ray, 502 U.S.
 12

164 (1991), the Supreme Court rejected the respondents’
“asserted [public] interest [under FOIA Exemption 6] in
ascertaining the veracity of the interview reports” prepared by
the State Department based on interviews with Haitian nationals
involuntarily returned to Haiti. 502 U.S. at 179. The
respondents had not presented “a scintilla of evidence . . . that
tends to impugn the integrity of the reports.” Id. The Court
noted: “If a totally unsupported suggestion that the interest in
finding out whether Government agents have been telling the
truth justified disclosure of private materials, Government
agencies would have no defense against requests for production
of private information.” Id. Similarly, if an unsupported
suggestion that an agency may be distributing federal funds to
a fraudulent claimant justifies disclosure of private information,
the agency would have no defense against FOIA requests for
release of private information.
CSS points to a Government Accountability Office (GAO)
report as general evidence that Medicare is especially
susceptible to fraud. In 1990, the GAO “designated the
Medicare program as high risk for fraud, waste, abuse, and
mismanagement, in part because of its sheer size and
complexity.” U.S. GAO, GAO 06-813, Medicare Integrity
Program: Agency Approach for Allocating Funds Should Be
Revised 1 (2006), http://www.gao.gov/new.items/d06813.pdf.
In 1997, the Congress established the Medicare Integrity
Program, under which CMS contracts with eligible entities to
safeguard Medicare payments, including investigating potential
fraud cases. Id. at 1, 11-12; 42 U.S.C. § 1395ddd(a), (b)(1).
Without more, the GAO’s report does not raise a cognizable
public interest under FOIA in verifying that CMS is adequately
detecting fraud.5 In Multi AG Media, we did find that release of

5
In Computer Professionals for Social Responsibility v. United
States Secret Service, 72 F.3d 897 (D.C. Cir. 1996), we found that no
 13

the requested data would serve the public interest by allowing
the public to “more easily determine whether [the United States
Department of Agriculture] is catching cheaters and lawfully
administering its subsidy and benefit programs.” 515 F.3d at
1232. The specific public interest in Multi AG Media, however,
was enabling the public “to look at the information the agency
had before it when [determining whether a particular farm is
eligible to participate in the benefit programs in the first place]
so that the public can monitor whether the agency is correctly
doing its job.” Id. at 1231. In contrast, the Medicare claims
data is irrelevant to whether physicians meet the Medicare
enrollment requirements.
3.
Finally, CSS argues that the requested data will shed light
on whether HHS is complying with its own transparency
initiatives. HHS recently proposed a new system of records “to
assist in projects that provide transparency in health care on a
broad-scale enabling consumers to compare the quality and price

public interest would be served by disclosure under FOIA Exemption
7(C), 5 U.S.C. § 552(b)(7)(C), because the requesting party had
offered no evidence that the agency was engaged in illegal activity.
72 F.3d at 905. Similarly, in McCutchen v. United States Department
of Health and Human Services, 30 F.3d 183, 188 (D.C. Cir. 1994), we
found no public interest because the “mere desire to review how an
agency is doing its job, coupled with allegations that it is not, does not
create a public interest sufficient to override the privacy interests
protected by Exemption 7(C).” We recognize that the balancing
standard for disclosure is different under FOIA Exemption 7(C). See
5 U.S.C. § 552(b)(7)(C) (law enforcement records exempt from
disclosure if release “could reasonably be expected to constitute an
unwarranted invasion of personal privacy”) (emphasis added). But the
rationale of Computer Professionals and McCutchen for requiring
more than unsupported allegations that an agency is not doing its job
applies under FOIA Exemption 6 as well.
 14

of health care services so that they can make informed choices
among individual physicians, practitioners and providers of
services.” Privacy Act of 1974; Report of New System of
Records, 72 Fed. Reg. 52,133, 52,133 (Sept. 12, 2007). Since
2001, HHS and CMS have launched quality initiatives “to assure
quality health care for all Americans through accountability and
public disclosure,” including publicly reporting certain quality
measures to aid consumer decision-making. CMS, Quality
Initiatives - General Information - Overview, http://www.
cms.hhs.gov/QualityInitiativesGenInfo/ (last visited Jan. 23,
2009).
Contrary to CSS’s assertion, the requested data will not
assist the public in determining whether CMS is complying with
its transparency initiatives to provide consumers with more
information about service providers. First, the public is already
familiar with the type of data contained in the Medicare claims
database, which includes the diagnosis, the type and place of
service and the physician’s UPIN, as evidenced by CSS’s FOIA
request. The public does not need the data itself to evaluate
whether CMS’s failure to disclose it constitutes a failure to
comply with CMS’s transparency initiatives. Nor does the
public need the data to evaluate whether the steps already taken
by CMS are in fact assisting consumers in making informed
decisions. Second, according to CSS’s logic, CMS must
disclose any information possibly relevant to consumer health
care decision making, regardless of privacy interests, simply
because CMS stated its intention to provide more information
relevant to consumer health care decisions. CMS has
undertaken certain transparency initiatives but at no point has it
pledged, or been directed by the Congress, to disclose any
information to the public that could possibly assist consumers in
health care decisions without regard to any countervailing
interest, including the FOIA-recognized privacy interest. See
HHS, Value-Driven Health Care Home: Transparency Leads to
Change, http://www.hhs.gov/valuedriven/ (last visited Jan. 23,
 15

2009) (“Transparency is a broad-scale initiative enabling
consumers to compare the quality and price of health care
services, so they can make informed choices among doctors and
hospitals. In cooperation with America's largest employers and
the medical profession, this initiative is laying the foundation for
pooling and analyzing information about procedures, hospitals
and physician services. When this data foundation is in place,
regional health information alliances will turn the raw data into
useful information for consumers.”). CSS in fact seeks to use
FOIA to compel CMS to comply with its transparency initiatives
as CSS views them, not to evaluate whether CMS is fulfilling its
duties.6
In sum, the requested data does not serve any FOIA-related
public interest in disclosure. Accordingly, we need not balance
the non-existent public interest against every physician’s
substantial privacy interest in the Medicare payments he
receives. See Nat’l Ass’n of Retired Fed. Employees v. Horner,
879 F.2d 873, 879 (D.C. Cir. 1989) (“We have been shown no
public interest in . . . disclosure . . . . We need not linger over
the balance; something, even a modest privacy interest,
outweighs nothing every time.”). Accordingly, disclosure of the
requested data “would constitute a clearly unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(6). And even were we
to find a FOIA-related public interest in disclosure, it would be

6
CSS would have us place the public in a position akin to a judge
conducting in camera review of documents to determine whether a
party must produce information it deems irrelevant. See, e.g., Douglas
Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 236 n.8 (1979)
(Stevens, J., dissenting) ("[P]etitioners could have requested that the
District Judge view the transcripts in camera to test their relevance.").
The problem in the FOIA context is that once the Medicare data was
viewed by the public and the public had decided its "relevance" under
CSS’s transparency initiatives, the public would have compelled the
very action it wished to evaluate and the issue would be moot.
 16

negligible at best and insufficient to outweigh the significant
privacy interest in non-disclosure. See Painting & Drywall
Work Preserv. Fund, Inc. v. HUD, 936 F.2d 1300, 1303 (D.C.
Cir. 1991) (“attenuated public interest in disclosure does not
outweigh the construction workers’ significant privacy interest
in the requested information”).
For the foregoing reasons, we conclude that the requested
Medicare claims data CSS seeks is exempt from disclosure
under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Accordingly,
the judgment of the district court is reversed and the case
remanded for further proceedings consistent with this opinion.
So ordered.
 ROGERS, Circuit Judge, concurring in part and dissenting in
part: In holding that Exemption 6 of the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552(b)(6), is dispositive,
Op. at 15, the court has assessed a strong privacy interest for
private physicians who receive Medicare reimbursements while
ignoring the commanding public interest in disclosure of
information that would enhance the public’s ability to evaluate
how well the Department of Health and Human Services
(“HHS”) is performing its statutory duties under the Medicare
program. As subjective evaluations should not affect the
balancing of these interests, it is significant that two district
courts here, now and in 1979, and HHS itself have reached a
different conclusion about the importance of disclosing such
data to the public.

The district court concluded that the data requested by the
Consumers’ Checkbook, Center for the Study of Services (“the
Center”) would enhance the public’s ability to understand
whether HHS is effectively policing reimbursements and
physician practices. Consumers’ Checkbook, Ctr. for the Study
of Servs. v. Dep’t of Health & Human Servs., 502 F. Supp. 2d
79, 85-86 (D.D.C. 2007) (“Consumers’ Checkbook I”). Another
district court judge in this district reached much the same
conclusion in 1979. Pub. Citizen Health Research Group v.
Dep’t of Health, Educ. & Welfare, 477 F. Supp. 595, 604
(D.D.C. 1979) (“Public Citizen”), rev’d on other grounds, 668
F.2d 537 (D.C. Cir. 1981). HHS, in turn, has previously
released such data to at least one private enterprise unrelated to
the agency’s own initiatives, see Alley v. Dep’t of Health &
Human Servs., No. CV-07-BE-0096-E, slip op. at 3 (N.D. Ala.
May 8, 2008) (“Alley, N.D. Ala. 2008”), and also announced as
recently as 2007 that it would release much of the requested data
to research entities outside of the federal government as part of
a program of transparency, Privacy Act of 1974; Report of New
System of Records, 72 Fed. Reg. 52,133 (Sep. 12, 2007) (“2007
Records System”). HHS also has not appealed the waiver of
 2

FOIA fees for the Center premised on the determination that the
requested data is “in the public interest because it is likely to
contribute significantly to public understanding of the operations
or activities of the government,” 5 U.S.C. § 552(a)(4)(A)(iii).
Perhaps this is because, as Judge Gerhard Gesell wrote in 1979,
“[p]ractitioners who contract with the government to provide
medical services in exchange for federal payments perform a
quasi-public function,” and given “Congress’ abiding concern
to deliver cost-efficient public health care and physicians’ clear
prerogative to avoid government business,” important public
interests are at stake. Public Citizen, 477 F. Supp. at 604.

I.

The Freedom of Information Act requires agencies to
disclose all requested agency records, 5 U.S.C. § 552(a), unless
a statutory exemption applies, id. § 552(b). It is designed to
“‘pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.’” Dep’t of Air Force v.
Rose, 425 U.S. 352, 361 (1976) (quoting Rose v. Dep’t of Air
Force, 495 F.2d 261, 263 (2d Cir. 1974)). Consistent with “the
basic policy that disclosure, not secrecy, is the dominant
objective of the Act,” the statutory exemptions are “narrowly
construed.” Id. at 361. Under Exemption 6 an agency may
withhold “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (emphasis
added). If a court determines that a substantial privacy interest
is at stake, the court must then consider whether the “public
interest in disclosure outweighs the individual privacy
concerns.” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d
26, 35 (D.C. Cir. 2002). FOIA’s “strong presumption in favor
of disclosure places the burden on the agency” to justify
nondisclosure. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991).
This “presumption favoring disclosure . . . is at its zenith under
 3

Exemption 6.” Nat’l Ass’n of Home Builders, 309 F.3d at 37.

In March 2006, the Center requested HHS to release certain
Medicare claims data for health care providers in the District of
Columbia and the States of Illinois, Maryland, Washington, and
Virginia. This data includes the providers’ Medicare
identification number, procedure codes, diagnosis codes, and
geographic codes, but not patient identities. Although this data
does not directly reveal annual Medicare reimbursement
amounts for particular Medicare providers, the district court
found that the information can be used, in conjunction with free,
public information that Congress requires HHS to disseminate
to the public, see Omnibus Budget Reconciliation Act of 1990,
Pub. L. No. 101-508, § 4164, as amended, (“OBRA 1990”), 42
U.S.C. § 1395u note, and a free website for which HHS
contracts, to determine those amounts. See Consumers’
Checkbook I, 502 F. Supp. 2d at 84-85; Appellant’s Br. at 18.

The crux of the court’s determination today that physicians’
privacy interests outweigh the public interest in disclosure is its
conclusion that the requested data cannot assist the public in
assessing either the quality of Medicare services or HHS’s
efforts to combat fraud and waste. Op. at 14-15. In reaching
this conclusion the court overstates the inviolability of the
privacy interest and overlooks the near undeniable fact that the
requested data can be of some assistance to the public’s
evaluation of how HHS is carrying out its initiatives aimed at
measuring and improving health care quality and its efforts to
combat Medicare fraud and waste.

A.
There is little doubt that the disclosure of the requested
material would implicate more than a de minimus privacy
interest. Privacy encompasses “the individual’s control of
information concerning his or her person,” Dep’t of Justice v.
 4

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763
(1989) (“Reporters Comm.”), and extends to protect an
individual’s name and address, see Nat’l Ass’n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 876 (D.C. Cir. 1989); Fed.
Labor Relations Auth. v. Dep’t of the Treasury, 884 F.2d 1446,
1453 (D.C. Cir. 1989), as well as information that would “in
some cases allow for an inference to be drawn about the
financial situation of an individual,” even where the data reveals
only a portion of an individual’s financial situation, Multi AG
Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1230 (D.C. Cir.
2008); see also Lepelletier v. FDIC, 64 F.3d 37, 47 (D.C. Cir.
1999); Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d
673, 685-86 (D.C. Cir. 1976). Indeed, “[w]hen there is a
substantial probability that disclosure will cause an interference
with personal privacy, it matters not that there may be two or
three links in the chain.” Nat’l Ass’n of Retired Fed. Employees,
879 F.2d at 878. HHS suggests that Medicare reimbursements
represent, on average, a quarter of a physician’s income, and can
account for a “large percentage” of total income for some
physicians. Reply Br. at 16.

Nevertheless, as the Center points out, the physicians’
privacy interest is “particularly limited,” Appellee’s Br. at 14-
15, because the requested data pertains to receipt of government
funds and would not reveal physicians’ take-home earnings.
Although the fact of federal government funding may not be
dispositive in assessing the privacy interest, see Multi AG
Media, 515 F.3d at 1230; Nat’l Ass’n of Retired Fed. Employees,
879 F.2d at 876; Painting & Drywall Work Pres. Fund v. Dep’t
of Housing & Urban Dev., 936 F.2d 1300, 1302-03 (D.C. Cir.
1991), it cannot be denied that there is an element of public
service involved when physicians participate in the Medicare
program. See Public Citizen, 477 F. Supp. at 604. Further,
because the requested data does not directly reveal total income
and because HHS has not shown that one can predictably
 5

determine total income using the Medicare reimbursement
amounts, “the privacy interest that may exist is [not] particularly
strong,” Multi AG Media, 515 F.3d at 1230; see also Getman v.
NLRB, 450 F.2d 670, 675 (D.C. Cir. 1971); Public Citizen, 477
F. Supp. at 603-04. The extent of that privacy interest varies
according to how much of the physician’s income is derived
from Medicare; a doctor whose patients are mostly Medicare
beneficiaries has a greater privacy interest in her Medicare
reimbursement amounts than a doctor who treats only a few
Medicare patients. Additionally, Congress has already required
HHS to publish some private information about Medicare-
participating physicians, see, e.g., OBRA 1990, 42 U.S.C. §
1395u note (requiring release of physicians’ identification
number, address, and related information), and HHS has
released data much as the Center seeks, see, e.g, Alley (N.D.
Ala. 2008). Thus, regardless whether a practitioner has many or
only a few Medicare patients, HHS fails to meet its burden to
show that the privacy invasion at issue would be overly
intrusive.

B.
By contrast, there is a commanding and important public
interest in disclosure of the data the Center seeks. The single
relevant public interest in FOIA balancing is the “extent to
which disclosure of the information sought would ‘she[d] light
on an agency’s performance of its statutory duties’ or otherwise
let citizens know ‘what their government is up to.’” Dep’t of
Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497 (1994)
(quoting Reporters Comm., 489 U.S. at 773) (alteration in
Reporters Comm.). The public interest inquiry focuses, not on
the absolute value, but on “the incremental value of the specific
information being withheld.” Schrecker v. Dep’t of Justice, 349
 6

F.3d 657, 661 (D.C. Cir. 2003) (emphasis added).1 Because
Medicare “distributes extensive amounts of public funds,” there
is a “special need” for public oversight of HHS’s activities in
administering Medicare. Multi AG Media, 515 F.3d at 1232; see
generally Government Accountability Office, Medicare
Integrity Program: Agency Approach for Allocating Funds
Should Be Revised, GAO-06-813 (Sep. 2006). As this court
observed in Multi Ag Media, “Congress has recognized the
importance of ensuring the responsible use” of Medicare funds,
515 F.3d at 1232; see, e.g., Inspector General Act of 1978, Pub.
L. No. 95-452, § 2, 92 Stat. 101 (1978). Indeed, HHS itself has
acknowledged both that it “shares [the Center’s] broad policy
goals,” Appellant’s Br. at 39, in public disclosure, and, in
response to the Center’s fee waiver request, that it “do[es] not
dispute that the requested records pertains to operations or
activities of the Federal Government and that the disclosure of
the records would reveal meaningful information about
government operations or activities,” Letter from Herb B. Kuhn,
Acting Deputy Adm’r, Dep’t of Health & Human Servs., to
Robert Krughoff, President, Consumer’s Checkbook, Ctr. for the
Study of Servs. 2 (Mar. 16, 2007) (“Kuhn letter of Mar. 16,
2007”) (emphasis added).

There should be little dispute that the requested data would

1
Although in Schrecker the court was addressing FOIA Exemption
7(C) when it emphasized the incremental value of withheld
information, only the privacy considerations distinguish Exemptions
6 and 7(C), see Nat’l Archives & Records Admin. v. Favish, 541 U.S.
157, 164-66 (2004); the public interest inquiry is the same for both,
see Fed. Labor Relations Auth., 510 U.S. at 496 n.6. Because the
“incremental value” of withheld information is an appropriate public-
interest measure under Exemption 7(C), which “is more protective of
privacy than Exemption 6,” see id., it is no less of an appropriate
measure under Exemption 6.
 7

shed light on at least two types of HHS activities.2 First, the
data would enable members of the public to evaluate HHS’s
performance of its statutory duties regarding the quality of
Medicare-provided services. Even if HHS does not have
statutory authorization to supervise or control the practice of
medicine, see 42 U.S.C. § 1395, Op. at 8, HHS has a statutory
and regulatory duty to evaluate and work to improve the quality,
cost, and efficiency of services delivered by Medicare providers.
For instance, 42 U.S.C. § 1395y(g) requires HHS to enter into
contracts with “utilization and quality control peer review
organizations” in order to promote improved delivery and
quality of health services. See 42 U.S.C. § 1320c et seq.
(elaborating upon section 1395y(g)). Likewise, Congress has
required HHS to “establish a 5-year demonstration program” for

2
During oral argument, the Center discussed 42 U.S.C.
§ 1395y(a)(1)(B), which precludes reimbursement for services that
“are not reasonable and necessary for the prevention of illness.” The
Center contends persuasively that the requested data, which includes
both the diagnosis and the procedure performed, could shed light on
whether HHS is paying providers for services in violation of this
prohibition. Additionally, the Center mentioned 42 U.S.C. § 1320a-
7(b), which provides that the Secretary of HHS has discretion to
exclude providers from participating in federal health care programs
for various reasons. One such reason is “claims for excessive charges
or unnecessary services.” 42 U.S.C. § 1320a-7(b)(6). The Center
contends that the requested data will shed light on the Secretary’s
exercise of discretion because an expert looking at diagnosis
information and procedure information could probably determine in
some cases whether certain procedures, and by implication any
charges for those procedures, were excessive or unnecessary.
However, I do not rely on § 1320a-7(b)(6) as it was not cited in the
Center’s brief, thus denying HHS an opportunity to respond in its
reply brief.
 8

projects examining “health delivery factors that encourage the
delivery of improved quality in patient care.” Id. § 1395cc-3(b).
Similarly, HHS’s 2007 Records System is designed “to assist in
projects that provide transparency in health care on a broad-
scale enabling consumers to compare the quality and price of
health care so that they can make informed choices among
individual physicians, practitioners and providers of services.”
72 Fed. Reg. at 52,133. Likewise, in 2006 President Bush
signed Executive Order No. 13,410, requiring HHS to
“implement programs measuring the quality of services supplied
by health care providers to the beneficiaries or enrollees” of
Medicare. See 71 Fed. Reg. 51,089, 51,090 (Aug. 22, 2006).

Studies show that releasing the data the Center seeks would
enable members of the public to evaluate HHS’s effectiveness
in fulfilling its duties. One study utilized Medicare claims data
in determining that the number of procedures performed by a
surgeon was inversely related to patient mortality rates for each
of eight studied procedures. See John D. Birkmeyer et al.,
Surgeon Volume and Operative Mortality in the United States,
349 NEW ENG. J. MED. 2117, 2122-23 (2003). Other studies
indicate that information about the number of times a physician
has performed a particular procedure would shed at least some
light on that physician’s success rate. See, e.g., Jim C. Hu et al.,
Role of Surgeon Volume In Radical Prostatectomy Outcomes, 21
J. CLINICAL ONCOLOGY 401 (2003); Deborah Schrag et al.,
Hospital and Surgeon Procedure Volume as Predictors of
Outcome Following Rectal Cancer Resection, 236 ANNALS OF
SURGERY 583 (2002). That there may not be unanimity within
the medical profession about the closeness of the correlation
between experience and quality does not diminish the public
interest in disclosure, as the court implies, see Op. at 9 (citing
Ethan A. Halm et al., Is Volume Related to Outcome in Health
Care? A Systematic Review and Methodologic Critique of the
Literature, 137 ANNALS OF INTERNAL MED. 511 (2002)).
 9

Neither HHS nor intervenor the American Medical Association
(“AMA”) suggests there is no correlation between experience
and quality. Even assuming the link between quality and the
number of procedures a provider has performed is weak, and
even though the requested data will only partially reveal
physicians’ experience levels, the data has “incremental value”
for ascertaining the quality of services performed both at the
provider level and program-wide. See Schrecker, 349 F.3d at
661.

The requested data also could be used to evaluate the
disciplinary and board certification histories of Medicare
providers and to study whether Medicare providers meet
recommended standards of care for patients with different
diagnoses. The data has value over and above currently
available information because the public could use it to evaluate
the extent of particular physicians’ Medicare participation and
to determine whether physicians have qualifications to provide
the services for which they seek federal reimbursement;
currently available information reveals only whether a physician
participates in Medicare. Such independent assessments of the
quality of Medicare-funded services, analyzed in the aggregate,
would serve as a check on HHS’s own quality-measuring
projects, helping the public ascertain possible weaknesses in the
Medicare program itself and in HHS’s statutorily-required
assessments of the program.

Because “the purpose of FOIA is to permit the public to
decide for itself whether government action is proper,”
Washington Post Co., 690 F.2d at 264, the existence of internal
HHS quality-measuring programs does not diminish the public
interest in disclosure. The Supreme Court recognized in
Reporters Committee that “the FOIA’s central purpose is to
ensure that the Government’s activities be opened to the sharp
eye of public scrutiny.” 489 U.S. at 773. In National
 10

Association of Home Builders, this court held even though the
agency had released its method for designating owl habitats,
there was still a public interest in disclosure of the data used in
that determination. 309 F.3d at 363. Similarly, in Multi AG
Media, this court observed that the data at issue “sa[id]
everything about whether a particular farm is eligible to
participate in the [federal] benefit programs in the first place and
thus ‘shed[] light on the agency’s performance of its statutory
duties.’” 515 F.3d at 1231 (quoting Reporters Comm., 489 U.S.
at 773). The Center has requested several of the same data
elements (including provider identification number, diagnosis
information, and surgical procedures performed) that HHS has
announced it plans to use in the 2007 Records System as part of
its oversight and transparency initiatives. See 72 Fed. Reg. at
52,135. Thus, even assuming HHS does not use the requested
data in determining eligibility or deciding whether to pay a
claim, the public has an interest in disclosure of the requested
data elements. And even if the data would not specifically shed
light on a particular HHS initiative, see Op. at 11, the public
interest in the data is strong with respect to HHS’s fulfillment of
the goal underlying many of its statutory and regulatory
activities: improving the quality of health care provided under
Medicare.

HHS suggests that disclosure of physician-identifying
information (specifically, unique physician identification
numbers), even if the requested data could shed light on the
performance of HHS’s statutory duties, would not contribute
any additional public benefit and so any data release should
redact physicians’ names. To the contrary, physician-
identifying information would enable the public to analyze the
information in context. For example, using the data along with
the physician’s name, researchers would be able to ascertain
whether a physician’s low Medicare procedure volume is
explained by the number of younger patients being treated.
 11

Also, withholding identifying information would compromise
the public interest in connection with HHS’s reaffirmation of its
goal of “enabling consumers to compare the quality and price of
health care services so that they can make informed choices
among individual physicians, practitioners and providers of
services.” 72 Fed. Reg. at 52,133. As HHS’s stated policy is to
facilitate consumer choices about which providers to patronize,
it cannot credibly maintain that providing physician-identifying
information could not shed light on its own activities.
Moreover, because the data the Center seeks cannot be retrieved
in any other way, the public interest in disclosure is not
significantly diminished by the derivative nature of its proposed
use.3

Second, the requested data would shed light on HHS’s
fraud-detection and fraud-prevention efforts. For instance, the
data could identify providers who perform “a suspiciously large
number of procedures in a given time period” or “submit[]
claims for procedures that are outside [their] own practice

3
Although HHS suggests that courts have been disinclined to require
disclosure in instances of derivative use, neither the Supreme Court
nor this court has adopted a per se rule against derivative uses. See
Dep’t of State v. Ray, 502 U.S. 164, 179 (1991); Painting & Drywall
Work Pres. Fund v. Dep’t of Housing & Urban Dev., 936 F.2d 1300,
1303 (D.C. Cir. 1991). Indeed, in Getman, this court indicated that
use of data in further studies may implicate the relevant public
interest, and ordered release of the names and addresses of employees
for use in a study of labor representation elections. 450 F.2d at 677.
In two subsequent derivative use cases, the court concluded that the
public interest in disclosure did not outweigh the privacy interests,
distinguishing Getman on the ground that the information in Getman
was not otherwise publicly available, whereas the information at issue
in those cases could be accessed in other less intrusive ways. See
Painting & Drywall Work Pres. Fund, 936 F.2d at 1303; Fed. Labor
Relations Auth. v. Dep’t of the Treasury, 884 F.2d 1446, 1452 (1989).
 12

areas.” Appellee’s Br. at 29. The data could therefore facilitate
public monitoring of HHS detection and prevention of fraud.
Additionally, to the extent that consumer choice could be
enhanced by knowing which physicians are potentially
responsible for wasteful or even fraudulent claims, release of
physician-identifying data is consistent with HHS’s goal of
improving consumers’ decisions about which medical providers
to patronize. See 72 Fed. Reg. at 52,133. The public could
utilize the requested information in determining whether HHS
is fulfilling this stated goal.

Again, that there may already be, as HHS and the AMA
assert, significant government oversight of physicians that the
public can oversee does not diminish the public interest in
disclosure of the requested data. For instance, the public can
currently use a public database to determine whether Medicare
is reimbursing any providers who have already been excluded
from Medicare for misconduct. However, FOIA’s purpose is
“to permit the public to decide for itself whether government
action is proper.” Washington Post Co., 690 F.2d at 264.
Consequently, the public’s interest in monitoring compliance is
not limited to ensuring that once HHS identifies a provider who
has engaged in misconduct, HHS does not reimburse that
provider for services. Rather, the public also has an interest in
monitoring the effectiveness of HHS’s identification of
providers responsible for misconduct. The court’s suggestion
that the Center failed to present evidence of alleged fraud that
the requested data would reveal creates a heightened disclosure
requirement that is without precedent. Op. at 11. Its reliance on
Ray, 502 U.S. 164 , is misplaced; the only issue in that case was
whether the redaction of names and identifying information was
lawful, see id. at 168, and the Supreme Court rejected the
asserted public interest in release of names and other identifying
information for studying the veracity of the released reports
because there was no evidence suggesting that the reports lacked
 13

integrity, id. at 179. The Center is not asserting a public interest
in disclosure of the physicians’ identities for purposes of
verifying the accuracy of the other requested data elements.
Rather, release of the physicians’ identities would enable the
public to place the released information in context and better
assess HHS’s fulfilment of it statutory and regulatory goals. As
noted by the Center, the Government Accountability Office
report, Medicare Integrity Program, Agency Approach for
Allocating Funds Should Be Revised, GAO 06-813 (Sep. 2006),
indicated that HHS had estimated $12.1 billion net of improper
payments to Medicare providers in 2005, offering support for
the proposition that HHS makes some Medicare payments to
fraudulent claimants.

In sum, Medicare providers’ privacy interest in data that
would reveal part of their annual income is more than de
minimus but not particularly strong, especially given previous
and planned disclosures by HHS. On the other hand, the
requested data would shed light on at least two key HHS
responsibilities under Medicare: (1) measuring and improving
the quality of health care that is provided and (2) combating and
detecting fraud and waste. To the extent that the requested data
may shed little light on the quality of health care delivered by
physicians with only a few Medicare patients, such physicians
also have relatively weak privacy interests in Medicare
reimbursement amounts, which likely represent a small portion
of their annual income. For physicians treating many Medicare
patients, the privacy interest is greater but so is the usefulness of
the requested data. HHS has reached the same conclusion as the
Center about the meaningfulness of the requested data in
informing the public about HHS’s Medicare activities, see, e.g.,
Kuhn letter of Mar. 16, 2007; 2007 Records System, 72 Fed.
Reg. at 52,133. HHS, consequently, has not met its burden to
show that release of the requested data “would constitute a
clearly unwarranted invasion of personal privacy,” 5 U.S.C. §
 14

552(b)(6) (emphasis added).

III.

Although FOIA Exemption 6 would not bar release of the
requested data, HHS contends that release is nonetheless barred
by an injunction issued by the United States District Court for
the Middle District of Florida in 1979.4 If the injunction would
bar release of the data that the Center seeks, then HHS would
not “improperly” be withholding it and the court would lack
jurisdiction to order disclosure. GTE Sylvania, Inc. v.
Consumers Union of the United States, Inc., 445 U.S. 375, 384

4
In Florida Medical Association v. Department of Health, Education
and Welfare, 479 F. Supp. 1291 (M.D. Fla. 1979), the district court
enjoined HHS’s predecessor:

from disclosing any list of annual Medicare reimbursement
amounts, for any years, which would personally and
individually identify those providers of services under the
Medicare program who are members of the recertified class
in this case.

Florida Med. Ass’n v. Dep’t of Health, Educ. & Welfare, No. 78-178-
Civ-J-S, 1-2 (M.D. Fla. Oct. 22, 1979). The recertified class
comprised all physicians licensed to practice in Florida and all AMA
members who are not Florida physicians but are providers of Medicare
services and would be individually identified in a disclosure. Florida
Med. Ass’n, 479 F. Supp. at 1295-96. A federal court in Louisiana
issued a similar injunction in 1980. See Am. Ass’n of Councils of Med.
Staffs of Private Hosps. v. Health Care Fin. Admin., No. 78-1373
(E.D. La. May 5, 1980). In 2008, a district court in Alabama ruled
that the 1979 Florida injunction applies only to data that indicates
“annual Medicare reimbursement amounts” in a manner that would
personally and individually identify Medicare providers who are
members of the recertified class, or is tantamount to providing such
information. See Alley, N.D. Ala. 2008.
 15

(1980); see Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142
(1989). The district court concluded that the 1979 Florida
injunction was “immaterial” to its analysis because the Center
was seeking “different records.” Consumers’ Checkbook I, 502
F. Supp. 2d at 86 n.1. Although this is true, the Center appears
to understate the effect of releasing at least some of the
requested data in urging a narrow construction of the injunction
while HHS appears to overstate the scope of the injunction.

The data requested by the Center does not coincide
precisely with the data elements that were covered by the list
addressed in the Florida injunction. The Center has requested
29 data elements for claims submitted to HHS, including the
physician provider’s identification number, the patient’s
diagnosis, the procedures performed, and the time and place of
service. It did not request the provider’s name, address, or
reimbursement amounts, the elements specifically covered by
the Florida injunction, see supra note 4. However, the district
court found that by combining the requested data with publicly
available information the public could calculate the
reimbursement amounts for particular procedures by individual
physicians. Consumers’ Checkbook I, 502 F. Supp. at 84. The
Center has not shown that this finding is clearly erroneous.

The 1979 Florida injunction contains broad language and its
purpose to apply broadly is evident from the accompanying
declaratory judgment and opinion, see Haskell v. Kansas Nat.
Gas Co., 224 U.S. 217, 223 (1912). It “permanently enjoin[s]”
disclosure of “any list” of Medicare reimbursement amounts for
“any years” that would identify members of the recertified class.
Florida Med. Ass’n v. Dep’t of Health, Educ. & Welfare, No.
78-178-Civ-J-S, 1-2 (M.D. Fla. Oct. 22, 1979). The
accompanying declaratory judgments states: “Any . . . disclosure
of annual Medicare reimbursement amounts, for any years, in a
manner that would personally and individually identify the
 16

providers of services under the Medicare program who are
members of the recertified class in this case is declared to be
contrary to federal law.” Id. at 2. The accompanying opinion
describes the issue presented as “whether the Secretary . . . of
[HHS’s predecessor] may disclose information concerning the
annual amounts of reimbursements paid to Medicare providers
in a way that would individually identify at least some of those
providers.” Florida Med. Ass’n, 479 F. Supp. at 1294. The
opinion concludes that the list at issue was a “similar file” under
FOIA Exemption 6, observing that “[c]ourts must look past
mere appearances and beneath labels, to the actual character and
nature of the information in question.” Id. at 1303. A 1982
modification provided that the injunction did not prohibit
disclosure of annual Medicare payment information about
individual physicians pursuant to the law enforcement exception
under the Privacy Act, 5 U.S.C. § 552a(b)(7). Florida Med.
Ass’n v. Dep’t of Health & Human Servs., No. 78-178-Civ-J-S
(M.D. Fla. Dec. 2, 1982).

In these circumstances, Schering Corp. v. Illinois
Antibiotics Co., 62 F.3d 903, 906-07 (7th Cir. 1995), and ALPO
Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 972 (D.C.
Cir. 1990), on which the Center relies, may not counsel a
contrary conclusion about the scope of the 1979 Florida
injunction. Although injunctions are to be construed narrowly,
“the rule of strict construction of injunctions should not be
pressed to a dryly logical extreme,” Schering, 62 F.3d at 906,
and an injunction should be tailored to the harm redressed,
ALPO Petfoods, 913 F.2d at 972. HHS views the injunction as
protecting against invasions of privacy resulting from release of
reimbursement amounts for members of the recertified class,
presumably relying on this court’s FOIA precedent regarding
linkage, e.g., Nat’l Ass’n of Retired Fed. Employees, 879 F.2d
at 878. The Center points out, however, that HHS’s 2007
Records System for quality monitoring, designed to advance the
 17

public interest in transparency, would entail releasing to outside
researchers the information covered by the 1979 Florida
injunction. HHS has responded that such data might not include
the reimbursement amounts. See Reply Br. at 11. Where this
leaves HHS’s view of the scope of the 1979 Florida injunction
is unclear. In any event, the question remains whether any
doubt about the scope of the injunction requires it to be read
narrowly. See In re Baldwin-United Corp., 770 F.2d 328, 339
(2d Cir. 1985).

Furthermore, by its specific terms, the 1979 Florida
injunction is limited to the recertified class, as HHS
acknowledged during oral argument; it does not reach the
release of data concerning other physicians. HHS responds that
segregating such data would be an arduous, lengthy task, subject
to error. Perhaps so, but HHS has yet to explain satisfactorily
why this would be in an age of computerized record keeping.
Given FOIA’s presumption in favor of disclosure, HHS is
obligated to segregate these records, see 5 U.S.C. §552(b), or at
least to “provide a more detailed justification than the
conclusory statements it has offered to date,” Mead Data Centr.,
Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977),
as to why segregation would be unreasonable.

Accordingly, I would affirm the district court’s ruling that
FOIA Exemption 6 does not bar release of the Medicare data
that the Center seeks, at least as to records pertaining to
physicians who are not members of the recertified class covered
by the 1979 Florida injunction and perhaps with regard to others
as well, and I would remand the case to the district court for
further proceedings on the scope of the injunction, including an
opportunity for HHS to explain why an order requiring
segregation of the data would be unreasonable.